'Docking Stations:' Designing a More Welcoming Architecture for a Post-2012 Framework to Combat Climate Change

By Petsonk, Annie | Duke Journal of Comparative & International Law, Spring 2009 | Go to article overview

'Docking Stations:' Designing a More Welcoming Architecture for a Post-2012 Framework to Combat Climate Change


Petsonk, Annie, Duke Journal of Comparative & International Law


INTRODUCTION

Different actions by countries with different circumstances will need different docking stations of support. So what tools will you create within the climate change regime to deliver on adaptation and mitigation? How will you use those tools to develop a self-financing climate compact?

--Yvo de Boer, Executive Secretary, United Nations Framework Convention on Climate Change, Statement at the high-level segment of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol, Poznan, Poland, 11 December 2008. (1)

The nations of the world are all in this global boat together. It is not a boat of which only half will sink while the other half stays afloat. Unless we all pull our oars in the same direction and plug the large leaks as well as the small leaks, our ship will flounder and surely sink.

--U.S. Senator Robert C. Byrd, statement during floor debate on S. Res. 98, the "Byrd-Hagel Resolution," Cong. Rec. S8115, 25 July 1997.

The credibility of the United States is not enhanced when the administration negotiates a treaty that has no hope of ratification in the U.S. Senate.

--U.S. Senator Chuck Hagel, statement during floor debate on S. Res. 98., the "Byrd-Hagel Resolution," Cong. Rec. S8115, 25 July 1997.

In 2009, efforts to address global climate change are underway in a wide range of forums. Parties to the United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol aim to adopt, in Copenhagen, Denmark in December 2009, a new instrument to replace Kyoto, whose legally binding emissions caps expire in 2012. The G-8 Summit to be held in Maddalena, Italy, in July 2009; discussions in the Major Economies Forum (MEF) process; and heads of state discussions initiated by UN Secretary General Ban-Ki Moon are all expected to address climate change. In 2008, the European Union adopted a climate & energy package that aims to reduce EU emissions 20% below 1990 levels by 2020, and in January 2009 the European Commission released proposals for the design of a new instrument at Copenhagen. Legislation to cap U.S. greenhouse gas emissions will be considered in the U.S. Congress in 2009. The United States Environmental Protection Agency (EPA) is also expected to begin exercising its authority, recently reaffirmed by the Supreme Court, (2) to regulate carbon dioxide under the U.S. Clean Air Act, 42 U.S.C. sec. 7521(a)(1). And efforts are underway among U.S. states, working in partnership with other states and provinces around the world.

One point is consistently emerging from all of these discussions. To keep open options for realizing the objective of the UNFCCC, namely stabilization of atmospheric concentrations of greenhouse gases at a level and in a timeframe so as to avert dangerous climate change, (3) efforts to slow, stop and reverse the increase in greenhouse gases must move as rapidly as possible in all major emitting nations, including industrialized nations, emerging economic powers, and developing countries. It is the thesis of this paper that the chances for realizing the objective of the UNFCCC can be improved significantly if governments construct cap-and-trade markets for global warming pollution, and if they include, in both the national legislation and any new international climate accord creating these cap-trade markets, what I call 'docking stations' (4)--i.e., provisions that welcome, rather than ward off, the participation of major emitting nations.

To some readers, such a thesis may sound obvious, or even trivial, on first reading. Of course all major emitting nations should be encouraged to join global efforts to cut emissions. Some recent scholarship, pointing to the lack of broad participation in emissions caps, has suggested that, rather than trying to expand emissions cap-and-trade markets to include new nations, it would be preferable instead to cut "political deals . …

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